CYIL vol. 13 (2022)

FRANTIŠEK TÓTH CYIL 13 ȍ2022Ȏ About the author: JUDr. František Tóth , is a Ph.D. Candidate at Palacký University in Olomouc, Department of European and International Law. His Ph.D. thesis deals with the legal status of private military and security companies within the sphere of public international law. He also works as a lawyer at the Ministry of Defence of the Slovak Republic, International Law Department. The opinions expressed in this article are those of the author and cannot be associated with any domestic or international institution. Introduction Crimes under international law are usually committed in a way that engages a large number of persons. The concept of command (or superior) responsibility is a form of responsibility (typical to international criminal law), which reacts to the collective character of international criminality. 1 It is also considered as a form of responsibility which “ seeks to bridge the gap between collectively created harms that characterise international crimes and the individual criminal liability imposed by ICL. ” 2 The doctrine of command responsibility, stipulated in Article 28 of the Rome Statute, 3 extends liability to a military commander, or civilian superior, for their failure to prevent, repress, or report the crimes of their subordinates. 4 Although Article 28 of the Rome Statute 5 is considered to be the codification of command responsibility, it has much older origins. Specifically, even though the foundations of doctrine of command responsibility have strong historical origins 6 the (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes, and, (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes, (ii) The crimes concerned activities that were within the effective responsibility and control of the superior, and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution ” The Rome Statute of the International Criminal Court, done at Rome on 17 July 1998, in force on 1 July 2002. Available at: https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf. 4 NEILSON, K. Ending Impunity: Bringing Superiors of Private Military and Security Company Personnel to Justice. New Zealand Yearbook of International Law . Vol. 9. 2011, p. 121. Available at: http://www8.austlii.edu. au/nz/journals/NZYbkIntLaw/2011/4.pdf. 5 Rome Statute of the International Criminal Court, note 3. 6 Even “the father” of International law, Hugo Grotius, stated that “ rulers . . . may be held responsible for the crime of a subject if they know of it and do not prevent it when they could and should prevent it. ” GROTIUS, H., KELSEY, F. W. (Translation). De Jure Belli Ac Pacis Libris Tres , Lawbook Exchange, Ltd. 2021, p. 523. 1 SVAČEK, O. International Criminal law , First edition, Olomouc, Palacký University in Olomouc, 2012 p. 89. 2 As “ICL” International Criminal Law has to be understood. LIU, Hin-Yan. Law’s Impunity. Responsibility and the Modern Private Military Company . Hart Publishing. Oxford and Portland, Oregon. 2015, p. 226. 3 Check the original wording of Article 28 of the Rome Statute of the International Criminal Court, according to which: “ In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

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